Metropolitan Petar v Mitreski

[2007] NSWSC 94

CITATION:	Metropolitan Petar v Mitreski [2007] NSWSC 94
HEARING DATE(S):	14 February 2007
JUDGMENT DATE :	14 February 2007
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Direct that the 6th defendant’s defence be filed on or before 28 March 2007.
CATCHWORDS:	PROCEDURE [97] – Supreme Court procedure – Practice under UCPR – Pleadings – Defence – Whether partial defence should be allowed.
PARTIES:	His Grace Metropolitan Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (P1) The Very Reverend Father Mitko Mitrev (P2) Lambe Mitreski (D1) Pero Damceski (D2) Boris Minovski (D3) Eftim Eftimov (D4) Mile Marcevski (D5) Macedonian Orthodox Community Church St Petka Incorporated (D6) Naum Despotovski (D8) Attorney General for State of NSW (D9)
FILE NUMBER(S):	SC 3369/97
COUNSEL:	T G R Parker SC and R E Steele (Ps) G O Blake SC (Ds1-6 & 8) C Tassone (S) (D9)
SOLICITORS:	Sachs Gerace Lawyers (Ps) McConnell Jaffray (Ds1-6 & 8) I V Knight, Crown Solicitor (D9)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 14 FEBRUARY 2007

3369/97 HIS EMINENCE PETAR, THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND & ANOR v LAMBE MITRESKI & ORS

JUDGMENT

1 HIS HONOUR: The plaintiffs apply for a direction that defences be filed. The defendants are prepared to consent to a direction that the defence of the sixth defendant be filed within 28 days, but on the basis that the defence that is to be filed should be limited to a defence to paragraphs 7 and 22 of the Statement of Claim Version 8.

2 I am not prepared to make a direction for a limited defence. I cannot see the way forward in these proceedings (including by way of the determination of an application for a further order for the separate decision of questions) without issue being joined (or not being joined as the case may be) on all outstanding matters in the proceedings, so that it may be seen how any question to be determined separately relates to the other questions that remain for determination in the proceedings.

3 If a comprehensive defence is filed, the Court can then require the parties to list the issues that they see as outstanding. Any decision as to the separate decision of questions and any other decisions that need to be made as to the further conduct of the proceedings can be made in the light of those issues.

4 It is my view that it is absolutely vital to the further progress of these proceedings that a full defence now be filed. I express that view, as the Judge managing these proceedings, for the benefit of the parties and so that that view may be patent to the Judge hearing the judicial advice proceedings, in case it is material in his Honour’s deliberations.

5 I therefore propose to direct that a defence be filed within an appropriate time. Mr Blake, of Senior Counsel for the defendants, suggested 28 days as an appropriate time, but did so on the basis that he was applying for a limited defence to be filed.

6 After further discussion, the orders that I propose to make are as follows:

(1) I direct that the 6th defendant file its defence on or before 28 March 2007.

(2) I stand the matter over to 9am on 22 February 2007 before me for further directions generally and particularly as to the filing of defences by the 1st to 5th and 8th defendants.

7 In general terms, I regard there as being in this matter a permanent liberty to restore before me on 12 hours’ notice. But, so that it is quite clear, without detracting from that permanent liberty, I grant liberty to restore on 12 hours notice between now and 22 February 2007.

8 If there can be by consent a relaxation of the injunction that would permit work to be done on the 6th defendant’s defence earlier rather than later, I can be approached in chambers to make that order. Let it not be forgotten, bearing in mind the nature of the matter, that I should need to know the Attorney General’s attitude to deal with it in that fashion. Again, from recently expressed attitudes, I should be surprised if the Attorney General opposed any reasonable relaxation consented to by the other parties.

9 I do not wish to encourage an application for extension of the time for the 6th defendant’s defence beyond 28 March 2007. However, I recognise that the work cannot be done without funds and that absence of funds would be a factor to be taken into account on any application for an extension.

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